New York State Court of Claims

New York State Court of Claims

VRIESENDORP v. STATE OF NEW YORK, #2008-018-618, Claim No. 109507, Motion Nos. M-74508, M-74553


Synopsis


Motion to Compel Disclosure: Defendant has not articulated or even intimated how information relating to claimant’s prior employment or lawsuits could be relevant to the claim presented here or any possible defense. Whether claimant voluntarily resigned his positions and withdrew his application for medical privileges or was coerced, and whether defendant’s actions breached any employment contract or was a wrongful discharge relate only to the circumstances surrounding the relationship and interaction between claimant and defendant. Although defendant may have relied on information obtained between November 2003 and April 2004 regarding claimant’s prior employment, anything defendant could obtain now would not be relevant to substantiate or refute the circumstances surrounding the termination of claimant’s relationship with defendant. Defendant has failed to set forth any viable reason the requested discovery information would be relevant to this action.

Motion to Strike Note of Issue: Given the delay in seeking this information (the deposition was conducted on November 2, 2007, the note of issue filed on January 31, 2008, and this motion filed on February 21, 2008) the Court will not grant an extension of time for additional discovery and the Court finds no reason to strike the note of issue.


Case Information

UID:
2008-018-618
Claimant(s):
HUIBERT M. VRIESENDORP, M.D.
Claimant short name:
VRIESENDORP
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109507
Motion number(s):
M-74508, M-74553
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, GREENBERG, FORMATO & EINIGER, LLPBy: Sarah C. Lichtenstein, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 11, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings two motions: A motion to compel (M-74508) the claimant to provide

authorizations for release of his personnel/employment records from prior employers and all pleading and settlement documents related to lawsuits involving prior employment disputes which claimant referenced during his deposition, and a motion to strike the note of issue and for an Order of Confidentiality (M-74553). Claimant opposes the motions.

Claimant brought a claim against defendant for his alleged coerced resignations in April 2004 from his employment as a Clinical Investigator for the Research Foundation of the State University of New York and as an Assistant Professor from the faculty of the State University of New York Upstate Medical University and his alleged coerced withdrawal of an application for medical staff privileges at the State University of New York Upstate Medical University, University Hospital. The claim asserted causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, prima facie tort, and abusive/wrongful discharge. Defendant brought a cross-motion to dismiss the claim and the Court, by Decision and Order dated June 29, 2005, dismissed the causes of action for prima facie tort and intentional infliction of emotional distress.[1]

Defendant interposed a Verified Answer to the claim, and asserted various affirmative defenses: including jurisdictional defenses, failure to state a viable cause of action for abusive/wrongful discharge because claimant left of his own volition and his appointment was temporary as an “at-will” employee, limitation of liability under Article 16 of the CPLR, contributory negligence and assumption of the risk, injuries sustained were caused by the actions of third parties, claimant may have previously commenced another action and either executed a release, settlement or compromised his claim for the same injury or damages and any recovery should be reduced by the amount of that compromise or settlement, and the relative culpability of each person liable should be determined and apportioned in accordance with CPLR Article 14.

Defendant made a demand for all documents relating to claimant’s prior employment and an authorization for claimant’s personnel and employment records from M.D. Anderson Cancer Center, Arlington Cancer Center, Marshfield Clinic, Mary Imogene Bassett Hospital, Bassett Healthcare, by a Notice for Discovery and Inspection dated February 2, 2005. Claimant objected to these demands. Claimant’s deposition was conducted on November 2, 2007, and defendant renewed requests for authorizations for employment records for academic positions that claimant had held in the past. Defendant also requested at that time copies of pleadings and/or settlement agreements related to lawsuits brought against M.D. Anderson and Marshfield Clinic. Claimant has objected to these demands.

Defendant now brings a motion seeking an order compelling production of the requested documents and authorizations, as well as any pleadings and settlement agreements from lawsuits brought against former employers. Defendant argues that since the demanded information does not fall within any of the statutory exemptions, privileged matter or attorney work product, it must be disclosed as the information is sought in good faith, may lead to information that could be relevant and to admissible proof. Defendant argues, in support of the motion, that “[d]uring the process leading up to [claimant’s] employment, and for a period of time thereafter, SUNY UMU/University Hospital made efforts to obtain information from prior employers as part of the employment process which is the subject of this Claim. SUNY UMU/University Hospital may or may not have received full and complete information from prior employers. Whether or not this occurred could bear on the defense of this Claim.” (Affirmation of Patricia M. Bordonaro, Esquire, dated January 31, 2008, page 6, ¶ 20). Counsel for defendant also states that claimant testified during his deposition that he had disputes with some of his prior employers which resulted in termination or resignation from prior positions. His deposition testimony regarding how these employment relationships ended may differ from the documentation defendant seeks to obtain and may lead to, according to defendant’s counsel, admissible evidence or evidence that may be used during cross-examination.

Any determination of a discovery motion must heed the purpose and intent of the discovery statutes which is to facilitate the full exchange of information which may be material and necessary to the prosecution or defense of an action (CPLR 3101). The parameters are wide and the courts should assist in the open sharing of documents and information. The Court of Appeals has described the terms “material and necessary” as requiring the disclosure of “...any facts bearing on the controversy...[t]he test is one of usefulness and reason.” (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407). Relevance is really the litmus test for disclosure.

Here the underpinnings of the claim is defendant’s alleged coercive actions forcing claimant to withdraw his application for medical staff privileges and resign from his position as Clinical Investigator with the Research Foundation of the State University of New York and as Assistant Professor with the State University of New York Upstate Medical University. Defendant has not articulated or even intimated how information relating to claimant’s prior employment or lawsuits involving prior employers could be relevant to the claim presented here or any possible defense. Whether claimant voluntarily resigned his positions and withdrew his application for medical privileges or was coerced, and whether defendant’s actions breached any employment contract or was a wrongful discharge relate only to the circumstances surrounding the relationship and interaction between claimant and defendant. Although defendant may have relied on information obtained between November 2003 and April 2004 regarding claimant’s prior employment, anything defendant could obtain now would not be relevant to substantiate or refute the circumstances surrounding the termination of claimant’s relationship with defendant. Defendant has failed to set forth any viable reason the requested discovery information would be relevant to this action.
Motion No. M-74553
As for the request to strike the note of issue, this is defendant’s second request to have the note of issue stricken. The first note of issue filed on July 25, 2007, in accordance with the Preliminary Conference Order was voluntarily withdrawn by stipulation to permit defendant time to depose claimant, and defendant withdrew its prior motion to strike the note of issue. Defendant again seeks an order striking the note of issue on the grounds that further discovery issues remain. In addition to the motion decided above to compel additional disclosure, defendant states that it will now waive its assertion of privilege under Public Health Law §2805-m(1) in response to claimant’s prior request for disclosure of information related to the credentialing process. Defendant also indicates that inquiry was made during claimant’s deposition into claimant’s filing of a Public Health Council complaint in accordance with Public Health Law §2801-b, relating to the alleged improper practices of State University of New York Upstate Medical University in allegedly coercing claimant’s withdrawal of his application for staff privileges. Claimant objected at the time on the grounds of confidentiality. Defendant requests that the Court order that any documents released by defendant related to the credentialing process or released by claimant relating to his Public Health Council complaint be sealed from public disclosure. Defendant goes on to argue that sealing the records or ordering the confidentiality of these documents would eliminate claimant’s objections based upon privilege to any questions at his deposition regarding his administrative challenge to the State University of New York Upstate Medical University’s decisions relating to the credentialing process filed with the Public Health Council. The Court notes, initially, that defendant has not met the prerequisite to bring a motion regarding these discovery issues, as they were never conferenced with the Court (Uniform Rules for the Court of Claims § 206.8[b]). Nonetheless, at this late juncture the Court will address the issues in an effort to keep this matter moving forward. Regarding the disclosure of the credentialing information, claimant has filed the note of issue and is ready to proceed based upon the information in hand or available by subpoena. Claimant is not pursuing the release of this information, and, thus, the Court does not find that the confidential release of this information is necessary.

Public Health Law §2801-b which authorizes a physician who feels aggrieved by an improper denial of staff membership or privileges in a hospital to file a verified complaint with the Public Health Council, also provides that information received by the Public Health Council in investigating the complaint “shall be kept confidential” and the records from any proceedings “shall not be admissible as evidence in any other action of any kind in any court or before any other tribunal, board, agency or person.” (Public Health Law §2801-b[3]). However, in an injunction action brought in Supreme Court any findings made by the Public Health Council shall be prima facie evidence of the fact or facts found therein (Public Health Law §2801-c). The statute clearly requires the information received by the Public Health Council through its investigation to be kept confidential. Thus the documents or information obtained by the Council and its procedures and deliberations thereon are confidential (Public Health Law § 2801-b(3); Matter of Cohoes Memorial Hospital v Department of Health of the State of New York, 48 NY2d 583). There is no proscription to the physician testifying regarding his or her complaint and defendant did not specify the parameters of the information sought about claimant’s administrative complaint with the Public Health Council. However, given the delay in seeking this information (the deposition was conducted on November 2, 2007, the note of issue filed on January 31, 2008, and this motion filed on February 19, 2008) the Court will not grant an extension of time for additional discovery and the Court finds no reason to strike the note of issue.

Given the time frame in determining this motion, the Court extends the time set forth in the Order Scheduling Trial dated October 30, 2007, for serving and filing any summary judgment motions to May 14, 2008, the motions to be made returnable on June 18, 2008.

Accordingly, based upon the foregoing, Defendant’s motions are DENIED.



April 11, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


M-74508

1. Notice of Motion

2. Affirmation of Patricia M. Bordonaro, Esquire, in support with exhibits attached thereto.

3. Defendant’s Memorandum of Law in Support of Motion to Compel Disclosure.

4. Affidavit of Sarah C. Lichtenstein, Esquire, sworn to February 27, 2008, in opposition, with exhibits attached thereto.

5. Claimant’s Memorandum in Opposition to Motion to Compel Disclosure.


M-74553

6. Notice of Motion

7. Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support.

8. Affidavit of Sarah C. Lichtenstein, Esquire, sworn to March 3, 2008, in opposition, with exhibits attached thereto.




[1]. Claimant also brought a motion to amend the claim to add a cause of action for tortious interference with contract and business relationship which was denied in the same decision and order (Vriesendorp v State of New York, Ct Cl, Fitzpatrick, J., Claim No. 109507, June 29, 2005, Motion Nos. M-69703, CM-69908).